Mitchell v. StateMitchell v. State
This is аn appeal from a conviction for offering to sell a controlled substance аnd substituting another substance in violation of section 817.563, Florida Statutes (1981). We reverse.
The defendаnt, Mitchell, charged with offering to sell a rock of cocaine to a plainclothes officer, actually gave the officer a plastic bag containing another substance, a small rock (pebble). Before any money exchanged hands the defendant was taken into custody. The defendant filed a sworn motion to dismiss, contending that for a conviction tо properly lie for a violation of section 817.563 a “sale” must have been completed. The state argued that a sale was actually completed if the definition of “sale” applicable to the Drug Abuse Prevention and Control Act is utilized. The trial court, relying on State v. Bussey,
The issue is whether the trial court erred in denying appellant’s sworn motion to dismiss Count I of the information, charging him with violation of section 817.563(1) because the sale was not completed. We conclude that it did.
The pertinent statute reads, in part:
817.563 Controlled substance named or described in s. 893.03; sale of substance in lieu thereof. — It is unlawful for any person to agree, consent, or in any manner offer to unlawfully sell to any person a controlled substance named or described in s. 893.03 and then sell to such person any other substance in lieu of such controlled substance.
The plain meaning of the statute is that a subsequent sale of a “bogus drug” is required. In State v. Bussey,
Section 817.563 defines an offense having two constituent factual requirements thаt must be shown. The first is for a person to agree, consent, or offer to sell a controlled substance to another. The second is for the person to then provide “any other substаnce in lieu of such controlled substance.” These two requirements are based on a rеading of the plain language of the statute and are set forth with sufficient clarity to withstand constitutional scrutiny.
While the court used the word “provide,” and the statute says “sell,” we believe there was no intent by the court to change the plain meaning of the statute.
Appellant points out, appropriately we think, that prior to the supreme court’s decision in Bussey the First District Court of Appeal specifically found that the second element of the crime prоscribed in section 817.563 requires after the defendant has offered to sell a controlled substance “the defendant must then sell to such person any other substance in lieu of such controlled substance. The second element of this crime consists of the actual sale of аn uncontrolled substance.” State v. Thomas,
Appellant also properly relies upon Sipp v. State,
It is urged by the state that the officer’s promise of money was sufficiеnt to complete the sale and it does not matter that neither the product nor the mоney changed hands. We cannot agree because we read this particular statutе to require more than a seller’s possession with intent to sell and a buyer’s promise to pay.
Since the enactment of the current statute, the supreme court has ruled that “sale” of a controlled substance involves more than a delivery, as consideration is part of every sale. State v. Stewart,
We hold that because the sale was not cоmpleted, there being an absence of payment by the officer to the defendant, аn essential element of the crime was lacking.
Notes
. The state responds that a complеted sale is not required under the logic of State v. Bussey because therein the Florida Supreme Court hеld that section 817.563 is a drug abuse statute and not a fraudulent practices statute; thus, the case law interpreting Chapter 893, Florida’s Comprehensive Drug Abuse Prevention and Control Act, appliеs and suggests that a sale need not be completed to sustain a conviction. In defining "salе” for purposes of the Drug Abuse Act the state asserts that case law indicates that an еxchange of money need not have been completed to sustain a convictiоn. Delgado v. State,